Midwest Oil Co. v. Youngquist
Citation | 11 N.W.2d 662,69 S.D. 461 |
Decision Date | 27 October 1943 |
Docket Number | 8620. |
Parties | MIDWEST OIL CO. v. YOUNGQUIST, State Treasurer. |
Court | Supreme Court of South Dakota |
Rehearing Denied Dec. 28, 1943.
Danforth & Danforth, of Sioux Falls, for plaintiff and appellant.
George T. Mickelson, Atty. Gen., and Charles P. Warren, Asst. Atty Gen., for defendant and respondent.
This is a mandamus proceeding instituted in the Circuit Court of Minnehaha County against the State Treasurer. The application for the writ alleges that plaintiff is engaged in the business of selling at wholesale and retail gasoline and other petroleum products; that a water main in a street in the city of Aberdeen adjacent to the premises where plaintiff maintains underground gasoline tanks broke; that the water through the break in the pipe continued to flow for several hours and "attained the proportions of a terrific flood, flowing over ground and under ground, and flowed in and about the under ground tanks of the plaintiff with great force" breaking the tanks and causing gasoline therein to escape and that defendant refuses to allow plaintiff to deduct from subsequent tax payments to the state the amount of tax paid on the gasoline lost by reason of the flood. Defendant moved to dismiss the proceeding on the grounds that the court was without jurisdiction and that the application for the writ did not state facts sufficient to entitle plaintiff to relief. The trial court sustained the motion and plaintiff has appealed.
A writ of mandamus is a command issuing from a court of competent jurisdiction requiring the "performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station" when "there is not a plain, speedy, and adequate remedy, in the ordinary course of law." SDC 37.4501, 37.4502. It is clear that the writ will be granted only when the plaintiff has no other clear, adequate and complete method of redressing the wrong or of obtaining the relief to which he is entitled. Taubman v. Board of Com'rs, 14 S.D. 206, 84 N.W. 784. In Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 50 S.Ct. 320, 324, 74 L.Ed. 809, it is stated: To the same effect are decisions of this court. Stephens et al. v. Jones et al., 24 S.D. 97, 123 N.W. 705; Farmers' Loan & Trust Bank v. Hirning, 42 S.D. 52, 172 N.W. 931; First Nat. Bank v. Hirning, 48 S.D. 417, 204 N.W. 901; State ex rel. Cook v. Richards, 61 S.D. 28, 245 N.W. 901. With the foregoing established rules in mind, we turn to the pertinent provisions of statute.
SDC 57.3802, § 1, Chap. 350, Laws 1941, provides for the imposition of a tax in the following language: "A tax of four cents per gallon or fraction thereof is imposed on all motor fuel sold or used in this state but said tax shall be paid but once."
SDC 57.3804, providing for deduction for losses, reads as follows:
SDC 57.3806 requiring monthly reports, reads as follows: ...
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